Family Obtains Injunction to Keep Brain Dead Man on Life Support

The family of a Toronto man who was declared brain dead after suffering from a cardiac arrest obtained a temporary injunction to keep the man on life support. The family intends on ultimately fighting to have the man’s death certificate revoked on religious grounds. He will remain on life support pending a final decision in that regard. In the meantime, the family and their ongoing battle have been making worldwide news.

What Happened?

The man, Shalom Ouanounou, aged 25, suffered a severe asthma attack which led to cardiac arrest. He was taken to Humber River Hospital and intubated on September 27. He has been breathing with the help of a respirator since then. On September 30, doctors determined that Shalom had met the conditions of neurological death and issued a death certificate. The next step would be removing the man from life support, which physicians at Humber River had intended to do on October 26th.

Shalom’s father, who is also his substitute decision maker and a devout Orthodox Jew, filed an application with the court arguing that his son is not considered dead under his faith. Last Wednesday, a judge issued the interim injunction, preventing physicians from taking Shalom off of life support while the matter is ongoing.

Charter Questions and End of Life Decisions

The larger legal battle that is yet to come will be about religious freedom. The family’s broader lawsuit is against the hospital, physicians, and coroners and may change how end of life decisions are treated in Canada.

The family cites the Charter and requests an exemption from a brain-death declaration for patients whose religious beliefs precludes or does not accept the concept of neurological death. They argued that disregarding such beliefs would represent a violation of both Shalom’s religious freedom and human dignity.

Shalom’s father claims that Shalom had made his views on life support clear before he fell ill:

Shalom’s belief is that discontinuing life support in these circumstances is murder and therefore contrary to his fundamental belief in the sanctity of human life…[a]nything less than continuing Shalom’s life support is a failure to accommodate his lifelong, firmly held religious beliefs.

The family’s position is that the Charter’s protections against religious discrimination should extend to end-of-life care and decision making. Other jurisdictions, including New York, Illinois, New Jersey, and California provide exemptions for individuals whose religions reject the notion of brain death. The family believes that under current circumstances,

[Shalom] would be declared dead in a manner contrary to his religious values and would be deprived of accommodation of his most fundamental constitutional and human rights when he is most dependent on them.

If the family is ultimately successful, the coroner’s office will have to revoke his death certificate and Shalom will be kept on life support until his heart permanently stops beating, at which point he would be considered dead in Orthodox Judaism.

A number of religious and other organizations have applied for intervener status, including B’nai Brith (a Jewish human rights group), an association for Orthodox rabbis, and the Euthanasia Prevention Coalition.

Speaking to The Canadian Jewish News, the Center for Israel and Jewish Affairs (CIJA) that balancing freedom of religion and end-of-life decision making can be challenging, stating

We have engaged the Ontario Ministry of Health and Long-Term Care and are exploring an intervention with the court on this case. Our hope is that there will be a resolution that satisfies all concerned parties and establishes a consensus that informs a protocol for such circumstances in the future, in a manner that will preserve human dignity and the constitutional rights of people of deep faith.

Current Canadian Guidelines on Brain Death

While there is no statutory definition of death in Ontario, Canadian medical guidelines generally acknowledge death as the irreversible cessation of brain function and of the capacity to breathe.

Medical and ethical experts have reacted cautiously with respect to this and many other recent cases that question brain death.

Dr. Alison Fox-Robichaud, critical care professor at McMaster’s Faculty of Medicine, told the National Post that people have a “fundamental misunderstanding of what [brain dead] means”. She noted that patients who are brain dead can only breathe and circulate blood because of a the respirator pumping air into their lungs, which, in turn, keeps their heart beating. She notes that:

It’s not a trivial concern- if the brain is not functioning how can they be alive

Fox-Robichaud further argues that requiring physicians to continue to treat brain dead patients is a strain on resources that are already at capacity limits, and also causes stain on the treating nurses and physicians. She states

I have ethical concerns about maintaining a dead body when that is incredibly expensive…Can you imagine if your 20-year-old son is in a car accident … and there is no ICU bed available because the court has demanded we continue to breathe for somebody who has been dead for two weeks?

We will continue to follow developments in this case, and in others involving legal challenges to end of life decision making, and will provide updates as they become available. At Wise Health Law, we are passionate about helping health professionals and healthcare organizations understand and protect their legal rights. Our lawyers have significant trial and appellate experience, and will zealously represent clients whenever litigation is required. We represent clients across healthcare including regulated health professionals, regulatory bodies, public hospitals, and healthcare clinics. Contact us online, or at 416-915-4234 for a consultation.

Author

Written on behalf of Wise Health Law

Date

November 3, 2017

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